Director of Public Prosecutions v Ward
[2024] VCC 118
•19 February 2024
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00495
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROSTEL WARD |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2024 | |
DATE OF SENTENCE: | 19 February 2024 | |
CASE MAY BE CITED AS: | DPP v Ward | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 118 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: obtain a financial advantage by deception - contravening a bail condition – life insurance policy - fraudulent Philippines death certificate - false claims - private investigator - background check.
Cases Cited:Boulton v The Queen [2014] VSCA 342.
Sentence: 2-year community corrections order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G. Buchhorn | Office of Public Prosecutions |
| For the Accused | Mr C. Terry | Adrian Paul Criminal Lawyers |
HIS HONOUR:
1Rostel Ward, you have pleaded guilty to one charge of attempting to obtain a financial advantage by deception, for which the maximum penalty is five years' imprisonment. You have also pleaded guilty to two charges of contravening bail conditions. The maximum penalty for contravening a bail condition is three months' imprisonment.
2The facts of this matter were set out in detail in the prosecution opening, which was tendered as an exhibit on the plea. The facts are not disputed.
3You were born in November 1982 in the Philippines. You are an Australian citizen. You were 37 years old at the time of the offending in this case.
4By way of background, on 3 September 2005, you married Jeffrey Ward. You and Mr Ward have three children together.
5Mr Ward was a migration agent between 2008 and 2017. From 2013, he was recorded as a Principal Migration Consultant in Mindanao in the Philippines, working for a business named Australian Visa Consultants. He lost his registration as a migration agent in 2019 and he was made a bankrupt in October 2017.
6On 30 August 2004, Mr Ward became a member of the Motor Traders Association of Australia Superannuation Fund (MTAA Super Fund). He commenced a life insurance policy at that time as part of his membership with MTAA Super Fund. That insurance cover was provided by Met Life Insurance Limited ('Met Life'). From 3 November 2009, you were the sole beneficiary of that policy in the event of his death.
7In September 2012, the amount of cover was increased to $1m, and this was approved on 5 October 2012, to take effect from April 2013.
8On 12 November 2019, Mr Ward left Melbourne and flew to the Philippines. On
On 24 November 2019, you travelled to the Philippines.
9
On 24 March 2020, MTAA Super Fund received a nomination from Mr Ward electing to continue his insurance cover despite it having been inactive for
16 months. MTAA Super Fund confirmed that the insurance cover would continue, and monthly fees would be deducted from the balance of the super fund account.
10Between 27 and 30 March 2020, you either created or caused to be created a fraudulent Philippines death certificate. That certificate asserted that Mr Ward had died on 25 March 2020 at 8.15 am from respiratory failure caused by coronavirus. The physician certifying death was purported to be a Dr Rizza Gille. The death certificate claimed that Mr Ward's body had been cremated on 25 March 2020 at a crematorium in the Philippines. You signed the death certificate as containing true and correct information.
11In April 2020, you signed a document purporting to be an affidavit. In that document, you claimed to be a widow. Attached to the document was the death certificate.
12On or about 9 April 2020, Mr Ward's death was registered with the Victorian Office of Births, Deaths and Marriages. Based on the information, the office issued a genuine Victorian Death Certificate in respect of Mr Ward which was posted to you.
13
In early April 2020, you started an application to MetLife for a claim against
Mr Ward's life insurance policy. This initial communication with MetLife included an initial death notification form.
14On 17 April 2020, you followed up with Met Life using an email account [email protected], and you asked to be contacted on a mobile phone number. A Met Life employee emailed you that the claim process had begun and asked you to complete an MTAA Super Fund application for payment of death benefit. The application was attached to the email.
15
On 17 April, you completed the MTAA Super Fund form. In that form, you said
Mr Ward had died on 25 March 2020 from an illness. You said that completing the form was difficult because of the gravity of the situation. You claimed that Mr Ward had operated a boutique law firm for almost 10 years and that you were a stay-at-home mum attending to family matters and looking after the children as evidence of your relationship and financial dependency on Mr Ward. You said that Mr Ward did not have a will and there was no probate or Letters of Administration. You gave your address as a property in Berwick. You signed the form as true and correct.
16You also sent another group of documents to MetLife which they needed to process the application. Later in April, you sent Met Life a copy of the Victorian Death Certificate.
17On 29 April 2020 you returned to Australia with your oldest son.
18Thereafter, you called Met Life several times to follow up on the insurance claim. You continued to pursue the claim and maintained that Mr Ward had died. In those calls, you made several false claims designed to further the insurance application.
19In late April 2020, Met Life began investigating the application. A private investigator was engaged to perform a background check on you and on Mr Ward. In this investigation, it emerged:
· that you were not living at the Berwick address;
· there was no mention of Mr Ward's death on any social media accounts of his friends or his family members;
· on 15 March 2020, he had shared a Facebook post about taking vitamin C to prevent COVID;
· on 15 March 2020 you updated your Facebook cover and profile picture to include the words '… because there is no COVID-19';
· that Mr Ward's death was not recorded on any official COVID-19 list kept by government bodies in the Philippines;
· that there were no reports of an Australian citizen dying in that part of the Philippines;
· there was no record of the physician who had signed the death certificate, and that the doctor who would ordinarily sign such certificates in that part of the Philippines did not sign that death certificate;
· that the term 'coronavirus' was not commonly used to describe deaths from COVID-19; and
· although the death certificate appeared legitimate, most of its contents were untrue.
20On 27 May 2020, Mr Ward himself returned home to Melbourne with the other two children.
21On 22 June 2020, Met Life sent you a letter saying the claim would be denied.
22On 24 June 2020, your email account was deleted.
23On 28 June 2020, the mobile phone was deregistered.
24The matter was then referred to Victoria Police for investigation in October 2020. Police attempted to locate you and found you were not living at the Berwick address.
25In July 2021, police became aware that you and Mr Ward were living in Wycheproof.
26On 23 November 2021, a warrant was executed at the Wycheproof address. Police seized your Apple iPhone, your passport and other electronic and storage devices.
27
You were interviewed in November 2021. Broadly, you admitted you knew
Mr Ward had not died. You were aware that you were ineligible to receive $1m in the event of his death. You denied being involved in the application to extend the superannuation account. You admitted signing the death certificate knowing the details were false. You said you created the death certificate and printed the document. You said the computer that you used to create the document was in the Philippines. At some point you said Mr Ward had created the document. You admitted the 'affidavit' contained false information about his death. You said you had used an attorney in the Philippines to execute the document.
28You initially said you completed the Super Fund death benefit payment form and compiled the accompanying documents, but later you said you did not see it, even though that document contained your signature. You said you contacted Met Life and lodged the claim against the insurance policy. You said at one point that Mr Ward wrote the initial emails to MetLife. You accepted, though, that you spoke to MetLife after returning to Australia.
29You said that you and Mr Ward maintained contact in Australia and overseas. You denied being notified by Met Life that they would not pay out on the insurance policy. You admitted your representations were lies. You said that you attempted to obtain the money from Met Life because neither you nor Mr Ward were employed and had no income. You said you knew what you were doing was wrong.
30As to these bail offences, you were required to report to Wycheproof police station or, if no one was present at Wycheproof, to ring Swan Hill police station, between 6.00 am and 9.00 pm on Mondays, Wednesdays and Fridays. You were also required to live at an address in Wycheproof.
31
From around February 2023, you were not living at that address and from
17 January 2023, you did not report to the Wycheproof police station.
32This offending involved planning and preparation. To support the fraudulent claim, you created or caused to be created multiple false documents. You made multiple false representations in those documents and verbally to MetLife. This was an elaborate, planned and ambitious scheme, and you pursued it over a protracted period both in the Philippines and when you returned to Australia. I accept that as soon as you became aware the insurance company would not pay you sought to cover your tracks by closing the email address and the phone service you used, to try and avoid detection. The amount you sought to obtain was $1m, obviously a very significant sum of money. For all these reasons your moral culpability for the offending is high.
33That said, I accept that there were aspects of your conduct which are accurately described as amateurish. The attempt may well have succeeded had the insurance company not investigated, but given the amount claimed and possibly the suspicious nature of the claim, the insurance company quickly engaged a private investigator and in my opinion from that point the application was unlikely to survive any serious scrutiny. The fraudulent nature of the application was in fact discovered relatively quickly in this matter. This was a serious offence. Attempting to obtain a financial advantage carries a maximum penalty of five years' imprisonment and this is on any view a serious example.
Personal circumstances
34You are now 40 years old. You were born and raised in Mindanao, an island province of the Philippines. You are one of six children. Your father was in the military. He was a strict disciplinarian, and you had a closer relationship with your mother than your father. You completed school in Mindanao and then completed a Bachelor of Commerce in the Philippines, a degree not recognised in Australia. After you had finished your degree, you worked in the loan department of a rural bank for two years.
35You met your husband Mr Ward through your aunt who met him through the
Church of Jesus Christ of Latter-day Saints. Your initial communication with him was by telephone and email. You first met him in person in 2004 when he was in the Philippines on a missionary trip. You married Mr Ward in September 2005 and emigrated to Australia.
36Two of your siblings also live in Australia. The rest of your family remains in the Philippines. The material indicates you are estranged from your siblings who live in Australia.
37In Australia you have worked in a variety of jobs usually in the retail food industry.
38You and Mr Ward have three children: Oliver (now aged 17), Rafael (who is now aged 14) and Emmanuel (aged 13). Both Mr Ward and your two younger children have been present throughout these court proceedings.
39Between 2012 and 2017 you lived with your family in the Philippines. You returned home when the Philippines Government declared martial law because of the establishment of several terror organisations on Mindanao.
40You returned to the Philippines in November 2019, and it was in the following period the offence took place.
41You now live with your husband and younger children in an apartment in Docklands. You are working at Costco. You have been in that employment for approximately eight months. Your husband home schools the children. You are the breadwinner for the family at the moment.
42Your family are active members of the Church of Jesus Christ of Latter-day Saints. You and your husband have engaged in missionary work through the church in the Philippines.
43When you returned to Australia in 2020 you moved to Wycheproof, and you lived there until March 2023. You moved back to Melbourne to obtain treatment in respect of various medical issues.
44You recently suffered an episode of uterine fibrosis, and you had a hysterectomy in 2022. You have had other issues with ovarian cysts. More recently you have had significant unexplained hearing loss. Your doctors are not sure of the cause of this hearing loss, and you have been told multiple sclerosis is a possible explanation. You are currently having testing to determine whether you have multiple sclerosis. I accept that if I was to imprison you there would be a disruption to this testing which would increase your levels of anxiety relating to your condition and whatever is causing your unexplained hearing loss.
Guilty Plea
45You pleaded guilty to this matter at a committal mention proceeding. I accept your plea was at an early opportunity. By your plea you have shown a willingness to facilitate the course of justice. Your plea is consistent with you having some remorse for your conduct, but I find myself unable to gauge exactly how sincere your remorse is. The utilitarian value of your plea is significant. At the time you pleaded guilty this court still faced a backlog of trials resulting from the COVID-19 pandemic. Your guilty plea contributed to the reduction of that backlog. Accordingly, the utilitarian value of your plea is heightened. You must receive a significant sentencing discount for your guilty plea.
46You have no prior convictions and you have been a person of good character apart from the offending in this case.
47I have had regard to the comparative cases discussed on the plea which are indicative of current sentencing practices, one of the many factors to which I must have regard in deciding the appropriate sentence in this case. In sentencing you I must not ignore general deterrence. Offending such as this, if successful, affects not only the insurance company but the rest of the community by inflating the premiums other policy holders are required to pay for their insurance. Furthermore, I accept the prosecution submission that offending such as this necessitates expenditure in the form of resources by the insurance company to investigate the fraudulent conduct. In the circumstances, denunciation, general deterrence and just punishment must also be given weight; and personal deterrence, that is the need to send a message to you that further offending will result in significant punishment, also has some weight. In coming to that view, I note you did not adhere to your bail conditions which showed some level of non-compliance with orders made by the criminal justice system.
48That said, I am satisfied you have good prospects of rehabilitation. You have no prior convictions. You are now the sole breadwinner for your family. You have two teenagers in your care and an older boy as well. It seems to me you are unlikely to offend again.
49In the case of Boulton the Court of Appeal noted the punitive nature of the Community Correction Order and said that such an order may be available for even relatively serious crimes.[1] The Court of Appeal said that a sentencing judge should ask the following question:
'Given that a community correction order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires a conclusion that imprisonment with all its disadvantages is the only option?'.[2]
[1] Boulton v The Queen [2014] VSCA 342.
[2] Ibid [121]
50In this matter both the defence and the prosecution submitted that a Community Correction Order was open on all the facts of this case. In all the circumstances I have decided that the principles of sentencing allow the imposition of a Community Correction Order in this case and that is what I intend to do.
Sentence
51For the offence of attempting to obtain a financial advantage and the two offences of contravening bail conditions you are convicted and placed on a Community Correction Order for a period of two years with the following special conditions:
(a) 220 hours unpaid community work over two years.
(b) assessment and treatment for mental health as directed.
I will allow the hours performed pursuant to the rehabilitation condition be deducted from the community work that I have imposed.
52In coming to the view this sentence is appropriate, I took into account that you spent two days in custody. That is right?
53MR BUCHHORN: Yes.
54HIS HONOUR: So that you did get a very short taste of imprisonment which I think should add to the specific deterrence this case.
55Pursuant to s6AAA I indicate that but for your plea of guilty I would have imposed a sentence of 20 months' imprisonment with a minimum of 12 months.
56Those are the orders that I will make. You need to sign this order, Mrs Ward, I will print it out and bring it back to you and you can sign the order. Do you consent to a Community Correction Order; you agree to it?
57OFFENDER: Yes, Your Honour.
58HIS HONOUR: Just while that is being done, Mrs Ward, you will be required to report to Corrections in Melbourne. You will get the address, within 48 hours. So in two days you have to report to the Corrections office. If you change your address, you have to tell Corrections. If you change where you are working, you have to tell Corrections. You must accept their visits or go and see them as directed and you have to obey their lawful directions. You cannot leave Victoria without telling them. You cannot commit an offence in the next couple of years that is punishable by imprisonment, that would be a breach. You must do 220 hours community work and mental health treatment as directed. The mental health treatment, whatever hours you do on that, can be deducted from the community work, and if you do not complete the order or you breach the order then you can be charged with the breach and brought back before me. I would then be in a position where I might have to resentence you, go back to the start. We will just get the document brought down to you. Sorry, we are just having some trouble printing the document.
59HIS HONOUR: Mr Terry, we are just having some trouble. I will excuse you. When this document is printed I will have Mrs Ward sign it.
60MR TERRY: Thank you, Your Honour. I will no doubt speak to Mrs Ward on the telephone at some point later this afternoon.
61HIS HONOUR: Right. Thanks, Mr Terry. We can let Mr Terry go. Mr Buchhorn, I had better get on with the next thing, but as soon as we can print that I will just have Mrs Ward leave the dock and go and sit in the body of the court, but as soon as we have got the document I will bring her back in and sign it. Thanks for your assistance in this matter, Mr Buchhorn. You are excused for the moment, thanks.
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